357 Mass. 425

March 6, 1970 - May 4, 1970

Middlesex County


A cause of action in tort was not stated by the declaration in an action by the owner of a building against a contractor merely alleging an inferior quality of work negligently performed by the defendant in the building under a contract between the defendant and a previous owner of the property prior to the time the plaintiff purchased it.

TORT. Writ in the Superior Court dated February 28, 1968.

The action was heard by Leen, J., on demurrer.

Neil Sugarman (Paul R. Sugarman with him) for the plaintiff.

Francis E. Silva, Jr., for the defendant.

WILKINS, C.J. This action of tort by the owner of certain real estate was originally in three counts, each against a different defendant. The original defendants were, respectively, a contractor, an architect, [Note 1] and the plaintiff's grantor. As a result of the allowance of the plaintiff's motion to sever, the only count before us is count 1 against Assembled Homes, Inc. (hereinafter called the defendant), whose demurrer to the declaration was sustained. The plaintiff appealed.

Count 1, as amended, alleges that on or about March 31, 1967, the plaintiff purchased from one George W. Olson an apartment dwelling house in Malden; that on unstated dates the defendant had performed certain work, not described, on the premises; that the work was performed under an agreement, not described, between the defendant

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and the then owner of the premises, to which agreement the plaintiff was in no way privy; that the work was completed prior to the time the plaintiff purchased the premises; that the work was done in a negligent manner; that the defendant knowingly used faulty and substandard material, not described, in performing the work; that "as a result . . . the market value of the structure has been reduced" in an unstated respect at an unstated time or times; and that the plaintiff has been and will be put to great expense for the repair and reconstruction of the structure because of the negligence of the defendant. Wherefore, the defendant is "indebted" to the plaintiff.

The demurrer to count 1 was on three grounds: (1) The declaration does not state concisely and with substantial certainty the substantive facts necessary to constitute a cause of action. (2) The count sounds in both contract and tort while the writ is in tort. (3) The matters alleged in the declaration are insufficient in law to support the cause of action. If any ground is good, it will be enough to dispose of the appeal. Hiller v. American Tel. & Tel. Co. 324 Mass. 24 , 25.

It is manifest from the allegations of count 1, as amended, that there was no personal injury or property damage caused by an accident, but a repair loss, so-called. See Restatement 2d: Torts, Sections 3, 384, 385; Prosser, Torts (3d ed.) Section 96. There is nothing beyond an allegedly inferior quality of workmanship somehow performed in alleged breach of some duty owed an unidentified individual.

Count 1, as amended, does not state concisely and with substantial certainty the substantive facts necessary to constitute a cause of action. This disposes of the appeal.

The order sustaining the demurrer to count 1, as amended, is affirmed.

So ordered.


[Note 1] Count 2 is against Gustav A. Hagen, an architect, for negligent design of the building. Count 3 is against George W. Olson for misrepresentations in the sale of the building to the plaintiff.